Shiva Nath Prasad Vs. Tulsi Ram - Court Judgment

LegalCrystal Citation

legalcrystal.com/465506

Subject

Civil

Court

Allahabad

Decided On

May-20-1925

Reported in

AIR1925All801

Appellant

Shiva Nath Prasad

Respondent

Tulsi Ram

Excerpt: - - on behalf of the son it was pleaded that the debt was tainted with immorality and, therefore, the mortgage was bad and the son was not liable to pay the debt. all that the court held was that in view of the finding on the question of immorality the mortgage was bad and therefore there bad been no transfer of the property and no charge created. the previous cases referred to above therefore still hold good......in the property is concerned, but has order ed execution against the interest of the father in the joint property. the son appeals to this court, and on his behalf it is contended, in the first place, that the effect of the previous decision was to make the entire family property free from all liability; and in the next place it is contended that in the face of the finding that the debt was tainted with immorality, it is not open to the decree holder to attach any portion of the joint ancestral property. we think that there is absolutely no substance in the first contention. all that the court held was that in view of the finding on the question of immorality the mortgage was bad and therefore there bad been no transfer of the property and no charge created. it passed a simple money.....

Judgment:

Sulaiman, J.

1. This is an appeal by a Hindu son from a decree passed in execution against him. His father had made a mortgage in favour of the plaintiff decree-holder and a suit was instituted against him impleading his minor son. On behalf of the son it was pleaded that the debt was tainted with immorality and, therefore, the mortgage was bad and the son was not liable to pay the debt. The Court found that the debt was proved to have been tainted with immorality and therefore declined to pass a decree for sale on the basis of the mortgage-deed, but simply passed a money decree against the father personally. The decree-holder put the decree for money against the father in execution and attached the whole of the ancestral property including that which had been mortgaged. The Court below has allowed the objection of the son, so far as the attachment of his interest in the property is concerned, but has order ed execution against the interest of the father in the joint property. The son appeals to this Court, and on his behalf it is contended, in the first place, that the effect of the previous decision was to make the entire family property free from all liability; and in the next place it is contended that in the face of the finding that the debt was tainted with immorality, it is not open to the decree holder to attach any portion of the joint ancestral property. We think that there is absolutely no substance in the first contention. All that the Court held was that in view of the finding on the question of immorality the mortgage was bad and therefore there bad been no transfer of the property and no charge created. It passed a simple money decree against the father, but it did not in any other way hold that any ancestral property would never be liable to be sold in execution of the decree against the father.

2. The next contention also has no force. It was held by their Lordships of the Privy Council in the case of Deendayal Lal v. Jugdeep Narain Singh (1877) 3 Cal. 198 that the right, title and interest of one co-sharer in a joint ancestral estate might be attached and sold in execution to satisfy a decree against him personally under the law of Mitakshara. This principle was re-affirmed by their Lordships in the case of Suraj Bansi Koer v. Sheo Prasad Singh (1880) 5 Cal. 148, where at page 174 their Lordships observed that the previous decision had recognized the seisable character of an undivided share in a joint property. This case has been followed by this Court in the case of Lachhmi Narain v. Kunji Lal (1894) 16 All. 449 and in the case of Chandra Sen v. Ganga Ram (1904) 2 All. 899. It seems to us that if the interest of the father alone can be seised in execution of a decree against him, the question of the immorality of the debt does not arise. The son is not called upon to pay his debt, nor is his property said to be attached and sold. He is entitled to get his interest in the joint property exempted. But it does not follow that he is also entitled to prevent the attachment and sale of the interest of his father against whom a decree is in force. In the Full Bench case of Karon Singh v. Bhup Singh (1904) 27 All. 16 reference was made to an earlier Privy Council case, and it was pointed out that if the son sought to escape from having his interest affected by the sale, he had to establish that the debt he desired to be exempted from paying was of such a character that he as a Hindu son could not be under the pious obligation to discharge it. In a recent case of Abdul Karim v. Ram Kishore : AIR1925All327 the above mentioned Full Bench case was followed.

3. It is lastly contended that the observations of their Lordships of the Privy Council in the case of Brij Narayan Rai v. Mangla Prasad Rai A.I.R. 1924 P.C. 50 conclude this point and make the entire estate free from liability in case the debt is contracted for immorality. We think that the propositions laid down by their Lordships do not cover the point now before us. The question whether the interest of one co-parcener can be attached and sold in execution of a decree against him was not a matter before their Lordships. The previous cases referred to above therefore still hold good. We are of opinion that this appeal has no force It is accordingly dismissed with costs including fees.